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Family law in Canada concerns the body of Canadian law dealing with domestic partnerships, marriage, and divorce.
In Canada, family law is primarily statute-based. The federal government has exclusive jurisdiction over marriage and divorce under section 91(26) of the Constitution Act, 1867 . The main piece of federal legislation governing the issues arising upon married spouses’ separation and the requirements for divorce is the Divorce Act. Pursuant to the Divorce Act, the federal government has jurisdiction over child custody and access matters and spousal and child support during or after divorce. [1] The Divorce Act does not govern property issues. The provinces have exclusive jurisdiction over the solemnization of marriage under section 92(12) of the Constitution Act, 1867 and jurisdiction over spousal and child support, property division, custody and access, adoption, and child protection as part of the provincial government's jurisdiction over property and civil rights under section 92(13) of the Constitution Act, 1867 and jurisdiction over matters of a private nature under section 92(16) of the Act. Each province has an Act that addresses the rules of property division upon marriage breakdown. [2]
Since 2005, a marriage may be formed between two individuals of different or same sex. [3] Marriages are prohibited where an individual does not have the capacity or where there is a direct familial relationship such as parent/child or brother/sister. [4] The minimum age to marry is 16 years. A valid marriage must be properly solemnized within the rules of the province. [5]
A marriage may be nullified as void or voidable much in the same manner as a contract. A marriage is void when the parties do not have the capacity to marry (known as the essential validity of the marriage). Thus, marriages between blood relations, or parties already married, underage, or otherwise unable to consent would all be invalid for lack of essential validity. A marriage is voidable and can be annulled by a court if the spouses are incapable of consummating the marriage.
The formal prerequisites of a valid marriage are set out in the Marriage Acts [6] of Canadian provinces and territories. The parties must have a marriage license, be of proper age, or have parental consent. A marriage performed outside of the province will be valid if it is valid where the marriage is celebrated, that is lex loci celebrationis .[ citation needed ]
The legal implications of a marital separation may be governed by a contract. A separation agreement is typically negotiated and drafted with or without the assistance of lawyers. It is best negotiated when both parties are represented by their own legal counsel. It can set out the parties' agreement with respect to the division of property as well as child support, spousal support, custody, and access. Full financial disclosure and supporting documentation such as appraisals and income tax information is strongly recommended before parties enter into an agreement regarding support and property matters. Many jurisdictions offer mediation services to help parties resolve or narrow their issues, either with or without lawyers. Parties can also enter into pre-nuptial contracts to regulate the economic consequences of a future marriage breakdown. If it is shown that one party had unfairly negotiated the agreement can be invalidated. [7] [8] It is important that full and accurate financial disclosure is produced prior to entering into a marriage or cohabitation agreement, or there is a risk that the agreement could later be set aside by a court. Custody, access and child support cannot be agreed upon in a marriage or cohabitation agreement.
Under the Divorce Act, a spouse may only apply for a divorce when the spouses have been separate and apart for at least one year, when there has been adultery or cruelty. Practically, almost all divorces are processed under an application based on being separate and apart for at least one year. It is possible for spouses to live separate and apart while sharing the same residence. A central registry of divorce proceedings has been kept in Canada since July 2, 1968. If there is another divorce application involving the same two spouses, the Registry lets the courts know. Courts must complete an application form and send it to the Registry for each divorce application received. The Registry was created and is governed by Regulations made under the Divorce Act. [9]
Matrimonial property can be divided any time during or after the separation, divorce, or death. All matrimonial assets and property is presumed to be split evenly between spouses, after deducting debts. The scope of divisible matrimonial assets varies among provinces. Most provinces include all assets acquired during the marriage and any other assets pooled together. [10] The most significant divisible assets include matrimonial home and pensions. [11] Assets excluded typically include inheritances (unless the inheritance has been used to purchase the matrimonial home or has paid on the mortgage of the matrimonial home) and monetary damages for personal injuries. Business assets may also be excluded in some provinces. Business assets are typically limited to assets that produce an immediate gain in some entrepreneurial capacity. The value of a business owned by a spouse can be determined and included in the property to be divided.
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Custody and access are the terms used to describe the involvement of each parent in the lives of their children after separation. "Custody" is a term used to identify the decision making responsibility of each parent, with parents who have "sole custody" making significant decisions in their children's lives such as education, health, and religious upbringing. Parents who have "joint custody" make these decisions jointly. Joint custody can be difficult in situations where parties have poor communication following separation and/or where there has been violence in the relationship. "Access" describes the amount of time spent with children, including a regular parenting schedule and time spent over holidays, pursuant to a schedule set out in a separation agreement or imposed by a court if the parties have been unable to agree. In exceptional circumstances, grandparents or other relatives may be granted rights to exercise access. A new federal bill was introduced on May 22, 2018. Bill C-78 proposes to repeal the terms "custody" and "access" from the Divorce Act in favour of the terms such as "decision making responsibility" and "parenting time" which could be set out in a "parenting order" (if the matter is before the courts). [12] In determining questions of custody / access and parenting arrangements, the main consideration is to look at what is in the best interests of the child or children. This is found in the legislation and as well the Supreme Court of Canada [13] has referred to the best interests of the child as a child’s “positive right to the best possible arrangements in the circumstances.” There are numerous factors to be considered in examining what is in the best interest of the child or children. Bill C-78, which contains proposed amendments to the Divorce Act and other federal family law legislation, sets out a list of criteria to be considered in determining the best interest of the child or children. [14] A few examples of these criteria include: the child’s needs, given the child’s age and stage of development, such as the child’s need for stability; the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life and each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse. [15]
Child support is determined by the federal or provincial Child Support Guidelines. The basic ("table") amount of support is determined by the payer's income and the number of children in need of support. In a situation where each parent has custody of one or more child, the amount of child support payable is the difference between the amount each parent would pay the other for the table amount. In split custody, where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.
Special and extraordinary expenses that are specifically listed in §7 of the Child Support Guidelines, such as daycare, medical insurance coverage, health, education, and extracurricular expenses, may be ordered by the court to be shared by the parents. The expenses must be necessary with respect to the best interests of the child and must be reasonable having regard to the means and needs of the parents and children. Private schools and tutoring expenses and also extracurricular expenses are only allowable if they are "extraordinary".
The entitlement and value of spousal support is determined on a holistic basis that varies greatly depending on the circumstances. There is no single basis of entitlement and there is no single philosophy behind the reasons for support.[ citation needed ]
The three grounds of entitlement are compensatory, non-compensatory (i.e. needs-based), and contractual. Moge v. Moge first addressed compensatory basis. The court found in most marriages one party tends to suffer economic disadvantage from the marriage. The disadvantaged party may be compensated to the point of returning both parties to the point they were before the marriage breakdown. Compensation is measured on the degree of contribution to the marriage, sacrifice, and hardship. The agreement between the two parties is contract-based support based upon their marriage or separation contract.
The non-compensatory basis focuses on the mutual obligation of support created by the marriage. Thus, in circumstances where one party is disabled the other party will be under an obligation to continue their support of the other as part of the initial obligation in marriage. [16]
In 2008, the federal government released the final version of the Spousal Support Advisory Guidelines [17] which were meant as a means of estimating support based on income. It has no binding effect in law, but rather is used as a tool for negotiations and settlement. The guidelines distinguish between spouses with children and without children.
The formula for spouses without children provides a range of between 1.5 and two percent of the difference in gross incomes for each year of cohabitation. The duration of the payment would be one half of a year to one year for every year of the marriage. If it is over 20 years this it is of indefinite duration.
Spouses with children would expect a range between 40 and 46 percent of the sum of each spouse's "net disposable income". Net disposable income for the payer is equal to the spouse's income subtracted by child support, taxes, and other deductions. Net disposable income for the payee is equal to the spouse's income minus child support, taxes, deductions plus government benefits and credits.
{{cite web}}: CS1 maint: archived copy as title (link)Family law is an area of the law that deals with family matters and domestic relations.
Divorce is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. It can be said to be a legal dissolution of a marriage by a court or other competent body. It is the legal process of ending a marriage.
New York divorce law changed on August 15, 2010, when Governor David Paterson signed no-fault divorce into law in New York state. Until 2010, New York recognized divorces only upon fault-based criteria or upon separation. The State Senate approved the No-Fault Divorce bill on June 30, and the State Assembly passed the bill on July 1.
Alimony, also called aliment (Scotland), maintenance, spousal support and spouse maintenance (Australia), is a legal obligation on a person to provide financial support to their spouse before or after marital separation or divorce. The obligation arises from the divorce law or family law of each country. In most jurisdictions, it is distinct from child support, where, after divorce, one parent is required to contribute to the support of their children by paying money to the child's other parent or guardian.
Legal separation is a legal process by which a married couple may formalize a de facto separation while remaining legally married. A legal separation is granted in the form of a court order. In cases where children are involved, a court order of legal separation often makes child custody arrangements, specifying sole custody or shared parenting, as well as child support. Some couples obtain a legal separation as an alternative to a divorce, based on moral or religious objections to divorce.
Common-law marriage, also known as non-ceremonial marriage, sui iuris marriage, informal marriage, de facto marriage, or marriage by habit and repute, is a legal framework where a couple may be considered married without having formally registered their relation as a civil or religious marriage.
A prenuptial agreement, antenuptial agreement, or premarital agreement is a written contract entered into by a couple before marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony with agreed-upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse's right to claim an elective share of the estate of the deceased spouse.
Matrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate and if created, what properties are included in that estate, how and by whom it is managed, and how it will be divided and inherited at the end of the marriage. Matrimonial regimes are applied either by operation of law or by way of prenuptial agreement in civil-law countries, and depend on the lex domicilii of the spouses at the time of or immediately following the wedding..
The Divorce Act is the federal Act that governs divorce in Canada. The Constitution of Canada gives the federal Parliament exclusive jurisdiction to regulate the law of marriage and divorce.
In modern society, the role of marriage and its termination through divorce have become political issues. As people live increasingly mobile lives, the conflict of laws and its choice of law rules are highly relevant to determine:
Child custody is a legal term regarding guardianship which is used to describe the legal and practical relationship between a parent or guardian and a child in that person's care. Child custody consists of legal custody, which is the right to make decisions about the child, and physical custody, which is the right and duty to house, provide and care for the child. Married parents normally have joint legal and physical custody of their children. Decisions about child custody typically arise in proceedings involving divorce, annulment, separation, adoption or parental death. In most jurisdictions child custody is determined in accordance with the best interests of the child standard.
Australian family law is principally found in the federal Family Law Act 1975 and the Federal Circuit and Family Court of Australia Rules 2021 as well as in other laws and the common law and laws of equity, which affect the family and the relationship between those people, including when those relationships end. Most family law is practised in the Federal Circuit and Family Court of Australia and the Family Court of Western Australia. Australia recognises marriages entered into overseas as well as divorces obtained overseas if they were effected in accordance with the laws of that country. Australian marriage and "matrimonial causes" are recognised by sections 51(xxi) and (xxii) of the Constitution of Australia and internationally by marriage law and conventions, such as the Hague Convention on Marriages (1978).
The Family Law Act 1975(Cth) is an Act of the Parliament of Australia. It has 15 parts and is the primary piece of legislation dealing with divorce, parenting arrangements between separated parents (whether married or not), property separation, and financial maintenance involving children or divorced or separated de facto partners: in Australia. It also covers family violence. It came into effect on 5 January 1976, repealing the Matrimonial Causes Act 1961, which had been largely based on fault. On the first day of its enactment, 200 applications for divorce were filed in the Melbourne registry office of the Family Court of Australia, and 80 were filed in Adelaide, while only 32 were filed in Sydney.
This article is a general overview of divorce laws around the world. Every nation in the world allows its residents to divorce under some conditions except the Philippines and the Vatican City, an ecclesiastical sovereign city-state, which has no procedure for divorce. In these two countries, laws only allow annulment of marriages.
In Israel, marriage can be performed only under the auspices of the religious community to which couples belong, and inter-faith marriages performed within the country are not legally recognized. However, marriages performed abroad or remotely from Israel must be registered by the government. Matrimonial law is based on the millet or confessional community system which had been employed in the Ottoman Empire, including what is now Israel, was not modified during the British Mandate of the region, and remains in force in the State of Israel.
Divorce in the United States is a legal process in which a judge or other authority dissolves the marriage existing between two persons. Divorce restores the persons to the status of being single and permits them to marry other individuals. In the United States, marriage and divorce fall under the jurisdiction of state governments, not the federal government.
A postnuptial agreement is a written agreement executed after a couple gets married, or have entered a civil union, to settle the couple's affairs and assets in the event of a separation or divorce. It may be "notarized" or acknowledged and may be the subject of the statute of frauds. Like the contents of a prenuptial agreement, provisions vary widely but commonly includes provisions for division of property and spousal support in the event of divorce, death of one of the spouses, or breakup of marriage.
International matrimonial law is an area of private international law. The area specifically deals with relations between spouses and former spouses on issues of marriage, divorce and child custody. In the last 50 years, the States Members of the Hague Conference on Private International Law have attempted to harmonize domestic matrimonial laws and judicial rulings across international borders in these areas.
Divorce law in Sweden concerns the dissolution of marriage, child support, alimony, custody and the division of property. Divorce restores the status of married people to individuals, leaving them free to remarry. The divorce laws in Sweden are known to be considerably liberal compared to other jurisdictions.
In English law, restitution of conjugal rights was an action in the ecclesiastical courts and later in the Court for Divorce and Matrimonial Causes. It was one of the actions relating to marriage, over which the ecclesiastical courts formerly had jurisdiction.